Marking the apparent end of a three-year internal review, the Obama administration in December outlined its policy on negotiating agreements for nuclear cooperation, with a senior administration official describing it as a “principled approach, but also pragmatic and practical.”

The official, speaking at a Dec. 12 event, was referring in particular to the U.S. strategy for preventing the spread of technologies for uranium enrichment and spent fuel reprocessing. Those technologies are considered sensitive because they can be used to produce nuclear explosive material. The central question in the review was how hard the United States should press its potential nuclear trade partners to forgo enrichment and reprocessing activities.

Some lawmakers disagree with the administration’s approach and are introducing legislation that would give countries a strong push to forgo these activities.

In recent interviews, current and former administration officials generally stressed the consistency of the current policy with earlier versions. In a Dec. 10 interview, a State Department official said the administration was “restating long-standing policy” with some additional “nuance.”

The administration did not release a written explanation of the policy in conjunction with the Dec. 12 event. The most detailed written description of the policy that is publicly available appears to be a letter sent a month earlier by Julia Frifield, assistant secretary of state for legislative affairs. In a Nov. 12 letter to Sen. Bob Corker (R-Tenn.), the ranking member of the Senate Foreign Relations Committee, Frifield said the United States “employs a range of measures—both multilateral and bilateral—to help minimize the spread of [enrichment and reprocessing] facilities around the world.” She was responding to an Oct. 28 letter from Corker to Secretary of State John Kerry in which the senator criticized the administration policy as “inconsistent and confusing, potentially compromising” U.S. nonproliferation policies and goals.

In her response, Frifield said the administration’s approach “allows for flexibility in structuring legal and political commitments, while meeting the requirements of U.S. law and maintaining our principled stance” on enrichment and reprocessing activities.

The distinction between legal and political commitments has been a key part of the debate. In sending to Congress the 2009 nuclear cooperation agreement with the United Arab Emirates (UAE), President Barack Obama highlighted the “legally binding obligation” contained in Article 7 of the pact, which says that the UAE “shall not possess sensitive nuclear facilities within its territory or otherwise engage in activities within its territory for, or relating to, the enrichment or reprocessing of material.” (See ACT, June 2009.)

Some nonproliferation advocates in Congress and elsewhere have said other new U.S. cooperation agreements should follow that model. But in the Dec. 10 interview, the State Department official described the UAE agreement as “something of an aberration” and said it would be “unrealistic” to think that the United States could reach such an agreement with “all other countries.” The UAE made the commitment not to pursue enrichment and reprocessing activities in part as a result of a “political calculation” stemming from its desire to conclude an agreement with the United States and make sure that Congress did not reject the pact, he said. The UAE lies across the Persian Gulf from Iran, which has been pursuing a controversial nuclear program that includes uranium enrichment.

Drawing Distinctions

Vietnam, by contrast, did not have to accept a legally binding obligation when the Obama administration initialed a nuclear cooperation agreement in October. (See ACT, November 2013.) The text of the agreement has not been made public, but administration officials have described the pact as containing a Vietnamese political commitment to refrain from pursuing sensitive nuclear activities. In the letter to Corker and elsewhere, the administration has said this commitment is sufficient to satisfy its nonproliferation policy because of the combination of a number of factors, including Vietnam’s nonproliferation record, its pledge to rely on the international nuclear fuel market to meet its fuel needs, and its lack of enrichment and reprocessing capabilities.

In his letter, Corker cited the Vietnam agreement as not requiring Hanoi to “forswear” such capabilities. In contrast, Corker said, “My staff was recently assured by a State Department official that any potential nuclear cooperation agreement with Jordan would require a legally-binding commitment by the Jordanians not to pursue” enrichment and reprocessing activities.

Frifield did not address the Jordan agreement in her letter, and other administration officials have declined to comment on Corker’s description, saying the department does not comment on ongoing negotiations. In the Dec. 10 interview, the State Department official did not comment on the status of the Jordan talks, but said that an indigenous enrichment or reprocessing effort “makes absolutely no sense” for Jordan.

In his May 2009 message to Congress on the UAE agreement, Obama said the pact “has the potential to serve as a model for other countries in the region that wish to pursue responsible nuclear energy development.” It has not been clear if the administration intended to apply the model specifically to the Middle East or to other regions as well.

The State Department official said the U.S. determination of what is required in a cooperation pact with another country takes into account the “totality of [the country’s] nonproliferation credentials” and includes a “full intelligence assessment.” A country’s “regional context” could “weigh heavily” in the analysis, as there could be a “contagion” effect from pursuing sensitive nuclear activities, particularly in a “volatile” region, he said.

Legislation Introduced

Meanwhile, on Dec. 12, two senior members of the House Foreign Affairs Committee, Reps. Ileana Ros-Lehtinen (R-Fla.) and Brad Sherman (D-Calif.), introduced legislation that would “provide greater Congressional oversight of nuclear agreements with foreign countries and protect against the threat of nuclear proliferation,” according to their Dec. 13 press release.

The bill would modify the congressional review process for nuclear cooperation agreements, in part by making a country’s willingness to renounce enrichment and reprocessing activities a key factor in that process. Under current U.S. law, most nuclear cooperation agreements can enter into force without a congressional vote approving them if they lie before Congress for 90 days of so-called continuous session without Congress blocking them.

To qualify for that approach, an agreement must include nine specific nonproliferation conditions, including comprehensive international safeguards, adequate physical security, and the U.S. right of “prior approval” of enrichment or reprocessing of U.S.-origin nuclear material by the recipient country. Agreements that do not meet all those conditions require a vote of approval in both chambers of Congress.

Under the bill introduced by Ros-Lehtinen and Sherman, cooperation pacts would have to go through the more difficult vote-of-approval process unless the potential U.S. nuclear trade partner makes a “legally binding” commitment that it will not pursue enrichment or reprocessing activities and meets a number of other new nonproliferation criteria.

At a Dec. 11 event organized by the Nonproliferation Policy Education Center (NPEC), Sen. Edward Markey (D-Mass.) said he would introduce a Senate version of the bill.

The bill, H.R. 3766, is a slightly modified version of legislation introduced in 2011, H.R. 1280. (See ACT, May 2011.) That bill was approved by the House foreign affairs panel, but stalled after that.

In a Dec. 18 interview, NPEC Executive Director Henry Sokolski said the bill introduced by Ros-Lehtinen and Sherman would establish a process of “due diligence.” By giving Congress a stronger hand in reviewing nuclear cooperation agreements, lawmakers would be reclaiming authority that Congress had previously “delegated” to the executive branch, said Sokolski, a former U.S. nonproliferation official.

But in a Dec. 17 interview, Stephen Rademaker, also a former U.S. nonproliferation official, emphasized that the bill would make it more difficult for cooperation agreements that do not meet the new nonproliferation criteria to pass muster with Congress. By “rigid insistence” on renunciation of enrichment and reprocessing activities, the approach that the bill takes would drive countries with nascent nuclear power programs to seek nuclear supplies from countries that have less-rigorous nonproliferation standards than the United States does, said Rademaker, now a principal with the Podesta Group, a lobbying and public relations firm, and a consultant to the Nuclear Energy Institute, the lobbying arm of the nuclear industry.

Although a global norm against sensitive nuclear activities is “a worthy objective,” U.S. policymakers also have to think about the nonproliferation implications of not signing nuclear cooperation agreements with a country where renunciation of enrichment and reprocessing activities proves “unachievable,” Rademaker said. That is especially true if the country in question seems determined to proceed with its nuclear program, he said.

Rademaker also argued that even if a country’s commitment to refrain from enrichment and reprocessing activities is legally binding, it is not a “really effective bar.” A violation of such a commitment would allow the United States to cut off nuclear cooperation, but it would not have a legal effect on the country’s cooperation with other suppliers, and “it’s not like we can take them to the World Court,” Rademaker said.

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